Citation Nr: 0216067
Decision Date: 11/08/02 Archive Date: 11/14/02
DOCKET NO. 96-20 266 ) DATE
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to compensation pursuant to 38 U.S.C.A. § 1151
(West 1991) for residuals of left eye surgery performed at
the Department of Veterans Affairs Medical Center (VAMC) in
October 1991 and March 1992.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
S.M. Cieplak, Counsel
INTRODUCTION
The veteran served on active duty from October 1942 to
December 1945.
This appeal comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in New Orleans,
Louisiana, which denied the benefit sought.
In an October 2001 decision, the Board affirmed the RO's
denial of entitlement to the benefits sought. The veteran
appealed the BVA decision to the United States Court of
Appeals for Veterans Claims (hereinafter, "Court"), and the
Court vacated the BVA decision to correct a material defect.
The veteran died on July [redacted], 2002 prior to completion of
development.
FINDINGS OF FACT
1. The veteran in this case served on active duty from
October 1942 to December 1945.
2. On August 30, 2002, the Board was notified by the
attorney representing the veteran before the Court that the
veteran died.
3. A death certificate indicates that the veteran died on
July [redacted], 2002.
CONCLUSION OF LAW
Because of the death of the veteran, the Board has no
jurisdiction to adjudicate the merits of this claim. 38
U.S.C.A. § 7104(a) (West Supp. 2002); 38 C.F.R. § 20.1302
(2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Unfortunately, the veteran died during the pendency of the
appeal. As a matter of law, veterans' claims do not survive
their deaths. Zevalkink v. Brown, 102 F.3d 1236, 1243-44
(Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34
(1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). This
appeal on the merits has become moot by virtue of the death
of the veteran and must be dismissed for lack of
jurisdiction. See 38 U.S.C.A. § 7104(a) (West Supp. 2002);
38 C.F.R. § 20.1302 (2002).
In reaching this determination, the Board intimates no
opinion as to the merits of this appeal or to any derivative
claim brought by a survivor of the veteran. 38 C.F.R.
§ 20.1106 (2002).
ORDER
The appeal is dismissed.
C. P. RUSSELL
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.